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JUDGMENT In her Complaint dated and filed on 23rd May 2017, the Claimant seeks the following reliefs against Defendant: 1. An Order of this honourable court compelling the Defendant to apologize to the Claimant in writing for negligently terminating the employment of the Claimant on wrongful allegation through a letter dated 3rd April 2017. 2. Award of N1,000,000.00 (One Million Naira) as general damages against the Defendant for causing psychological trauma to the Claimant on negligent termination of her appointment with an unconfirmed weighty allegation against her through the letter dated 3rd April 2017 3. The sum of N500,000.00 as cost of prosecuting this suit. Upon the close of pleadings, trial commenced on the 29th day January 2018. The Claimant testified for herself as CW1. One Mrs. Veronica Onyeoziri testified as DW1 while Rev. Sister Gladys Chukwu testified as DW2. Hearing ended on 25th May 2018 and the court ordered parties to file Final Addresses. These were filed and regularized. Parties adopted their respective addresses on 9th November 2018. The case of the Claimant, as disclosed in her statement of facts and in her evidence as the sole witness, is that she was employed as a nurse/midwife in May 2013 by the Defendant in a letter dated 30/5/2013 and she worked for the Defendant until her employment was negligently terminated on wrongful and malicious allegation of selling hospital items to patients. The termination letter was dated 3/4/2017. She was never served any query throughout her employment and she was never invited to face any disciplinary committee of the Defendant before her employment was terminated. Her solicitors wrote a letter dated 11/4/2017 to the Defendant to withdraw the termination letter. The Defendant responded in a letter to the Claimant backdated to 23/3/2017 wherein the reason for terminating her employment was stated. The Defendant had served all her staff letters dated 16/3/2017 informing them that their take home pay will be reduced by 30% due to paucity of funds as a result of economic recession. The letter of termination of her employment on false allegation traumatized her. In proof of her case, the Claimant tendered some documents in evidence which were admitted in evidence as Exhibits C1, C2, C3, C4 and C5. The Defendant filed a statement of defence and also called 2 witnesses. They are Veronica Onyeoziri and Rev. Sister Gladys Chukwu as DW1 and DW2 respectively. The defence of the Defendant to the claims of the Claimant is that the Claimant was an employee of the Defendant but her employment was terminated by a letter dated 3rd April 2017 for acts of gross misconduct which included stealing of patients items, reselling the items to other patients or the same patient, engaging in personal business by bringing her own items to sell inside the hospital premises during working hours, refusal to obey orders, disrespect and rudeness to constituted authority, corrupting other staff by giving them stolen items to keep for her. The actions of the Claimant were contrary to the terms and conditions of service of the Defendant contained in the handbook. Under the condition of service, the matron has the responsibility to ensure high standard of practice and discipline by nurses in the hospital. The Claimant has been warned severally by the matron to desist from the misconducts and fellow staff had reported the Claimant’s misconducts to the management of the hospital. Under the condition of service, the Defendant has the right to dismiss any of its staff summarily for acts of misconduct. The Claimant was duly dismissed in accordance with the terms of the condition of service. The letter dated 23rd March 2017 is fraudulent and not from the Defendant. The Defendant urged the court to dismiss the suit. During the testimony of DW2, some documents were admitted in evidence through the witness. These documents are those marked Exhibits D1, D2, D3, D4, D5, D6, D7a to D7h and D8. Upon the close of evidence, counsel to the parties filed their respective final written addresses and same were adopted on 9/11/2018. The Defendant filed his final written address wherein learned counsel for the Defendant formulated the following issues for determination to wit; 1. Whether from the evidence in this case, it can be said that there was a wrongful allegation and unconfirmed weighty allegation against the Claimant. 2. Whether the employment of the Claimant was negligently terminated. 3. Whether the Claimant has proven a case entitling her to the reliefs claimed. On Issue One counsel argued that the case of the Claimant on negligent termination of employment must fail, since the Claimant is required in law to either succeed or fail on the strength or weakness of her own case. See OYINLOYE vs. BABALOLA ESINKIN AND ORS (1999) 6 SCNJ 278. Counsel also submitted that the Claimant failed to discharge this onus placed on her by the law. See IBAMA vs. SPDC (2005) All FWLR (Pt. 287) 832 at 843 Paras B – F; BENSON vs. OTUBOR (1975) 3 SC 9; CHUKWUMAH vs. SHELL PETROLEUM (1993) 4 NWLR (Pt. 289) 512 at 543. Counsel urged the court to hold that the employment of the Claimant was never negligently terminated; this being so in view of the facts pleaded in Paragraphs 3C and E, 4 and 5 of the statement of defence and evidence led by the witnesses, especially DW2 in establishing/proving those facts. On Issue 2, counsel argued that the misconduct which the Claimant was found culpable of falls within those stipulated under the column Summary Dismissal and not even entitled to any remuneration/entitlement as stated under Disciplinary Procedures column. But the Defendant in terminating the Claimant's employment gave her adequate notice vide Exhibit C5, and in compliance with Exhibit C1, particularly paragraph b. Counsel cited the Supreme Court decision in the case of OLADAPO MAJA vs. LEANRO STOCCO (1968) 1 All NLR 141 at 151 where acts which may constitute misconduct warranting dismissal was defined to include wilful disobedience to lawful and reasonable orders, amongst others. See the case of ATADI vs. UBN PLC (2005) All FWLR (Pt. 285) 517, at 541-542, paras. D – A. On Issue 3, counsel submitted that the Claimant had not shown any such terms and conditions and how it was breached, there is no such wrongful termination as claimed by the Claimant in this case. See WAEC vs. OSHIONEBO (2007) All FWLR (Pt. 370) 1512, paras D-E and F-H. See also NNPC vs. EVWORI (2007) All FWLR (Pt. 369) 1324, at 1342, paras. D-G. Counsel further argued that the Claimant did not prove the cost of prosecuting this suit, as no receipt of such fee was tendered, and neither has the Claimant proven any case as to entitle her to the reliefs sought. Counsel urged the court to dismiss the claims of the Claimant. The Claimant filed her final written address wherein learned counsel for the Claimant formulated the following issues for determination to wit: 1. Whether the employment of the Claimant was not negligently terminated. 2. Whether the testimony of DW1 can be believed 3. Whether the Claimant has proved her case beyond balance of probability to have warranted the grant of the reliefs sought before this honourable Court. On Issue One, counsel made reference to the provisions of the Defendant’s handbook and submitted that the right of an employer to summarily dismiss her employee is not absolute and that the right comes with a condition of fair hearing, the fulcrum of justice which the Defendant failed to comply with. Counsel cited the case of PATRICK ZIIDEH vs. RIVER STATE CIVIL SERVICE COMMISSION (2016) 9 ACELR (Appellate Court Employment Law Report) Page 39 lines 10-17 Section 36(1) of the 1999 Constitution On Issue 2, learned counsel for the Claimant submitted that where a witness gives contradictory evidence on an issue, the court will reject both, and such witness will not be believed on other evidence given in court. See EKWEOZOR vs. REG. TRUSTEE SACN (2014) 16 NWLR (Pt. 433) @ Pg.475 paras B-C. On Issue 3, learned counsel submitted that the Claimant has proved what is required by law to be proved for her case of wrongful termination of employment to be established as provided in PATRICK ZIIDEH vs. RIVER STATE CIVIL SERVICE COMMISSION (supra); NNPC vs. EVWORI (2007) All FWLR (Pt. 369) 1324 @ 1342 paras D-G. Counsel urged the court to find in favour of the Claimant. The Defendant filed their reply on points of law wherein learned counsel for the Defendant submitted replies to the issues raised by the Claimant. On Issue One, learned counsel submitted that in DALORIMA MERCHANT (NIG.) LTD vs. U.B.A PLC (2001) FWLR (Pt. 71) 1851, at 1860-1861, Paras. G-A, the point was emphasized that the expression fair hearing can only be properly defined in relation to the facts and circumstances of a given case but not otherwise. On Issue 2, Counsel placed reliance on the authority of ABOKOKUYANRO vs. STATE (2016) LPELR-40107 (S.C.) and contended that the position of the law was made clear that it is only such contradictions and inconsistencies which relate to the fundamental or core issues before the court that are fatal while other minor discrepancies are irrelevant. Counsel further submitted that there is no contradiction in the evidence of DW1 whether in the witness statement on oath or cross examination affecting the credibility of the evidence of DW1. See AGBO vs. STATE (2006) All FWLR (Pt. 309) 1380 at 1399, Paras B – C. On Issue 3 counsel submitted that the Claimant has not proved any wrongful termination of the employment of the Claimant in this case. See TAPSHANG vs. LEKRET (2000) 13 NWLR (Pt.684) 381. Counsel urged the court to find in their favour and dismiss the case against the Claimant. Further arguments proffered in the various addresses were reviewed and will be referred to in this judgment where necessary. COURT DECISION During the adoption of the final written addresses of the parties on 9/11/2018, the counsel for the Defendant submitted that the Complaint is not competent for the reason that it was not signed by the Claimant. Learned counsel for the Claimant cited the case of ALH. ABDULKARIM BUHARI vs. ALH. MOHAMMED ADEBAYO (2014) 10 NWLR (Pt.1416) 560 and submitted that failure to sign the complaint rendered the suit a nullity and it affected the jurisdiction of this court. In response, counsel for the Claimant submitted that the complaint was signed by A. A. Mohammed and the registrar of this court. Counsel for the Claimant also referred to Order 5 Rule 3 of the Rules of this court and urged the court to do substantial justice and not dwell on technicality. By Order 3 Rule 10 (c) of the NICN Rules 2017, a Complaint shall be signed by the party or by the party’s legal practitioner. That is to say either the party or his counsel is required to sign the Complaint. I have examined the Originating Complaint in this case. It contains the name of A. A. MOHAMMED Esq. as counsel for the Claimant who issued the Complaint. The NBA stamp of the said counsel was also affixed to the Complaint. However, the signature of the counsel is not on the Complaint but on the accompanying statement of facts. It appears that the Complaint is irregular for the simple fact that the Claimant’s counsel did not sign it even though counsel’s name is on it. The Defendant’s counsel filed the statement of defence in this action since 29th August 2017. Counsel for the Defendant must have been aware of the irregularity in the Complaint since then but kept quiet about it until the close of the case to raise the issue. The objection of the Defendant’s counsel is being brought at a late stage of the case and long after the Defendant’s counsel had become aware of the irregularity and taken steps by filing pleadings and going through with full trial. Having taken such steps, and the matter having progressed thus far, the Defendant can be said to have waived the irregularity complained of. See ETIM & ORS vs. OBOT & ORS (2009) LPELR-4128 (CA); MAKO vs. UMOH (2010) LPELR-4463(CA). By Order 5 Rule 2 of the rules of this court, the objection is stale and ought not to be entertained. In any case, the NBA stamp of the Claimant’s counsel is affixed to the Complaint. It indicates that the complaint was filed by a legal practitioner. Also, the accompanying statement of facts is signed by the Claimant’s counsel. By these facts, I have reasons to condone the irregularity and depart from the Rules. In my view, it will be in the interest of justice and fair hearing and equity to consider the case on its merit. The objection of the Defendant’s counsel to the competence of the Complaint is dismissed. In view of the facts presented by the parties in this case, the issue to be determined in this judgment is whether the Claimant has proved her case to entitle her to the reliefs she claims in this case. Before I proceed to determine the issue, let me first consider the objection to the admissibility of some of the documents admitted in evidence. When the Claimant tendered the documents admitted as Exhibits C3, C4 and C5 in evidence, the Defendant’s counsel indicated that he will be objecting to their admissibility and he was given leave to do so in the final address. Learned counsel for the Defendant has now submitted in the Defendant’s final written address that these documents are not admissible in evidence. For the letters dated 16th March 2016 and 3rd April 2017, Exhibits C3 and C5 respectively, the Defendant’s counsel submitted that the documents are photocopies and no foundation was laid for their admissibility. The copies of these 2 documents tendered in evidence by the Claimant are photocopies. She explained in her evidence that the originals are with the Defendant. The Defendant’s counsel has argued that the Claimant cannot tender the photocopies in evidence without showing that the Defendant was given notice to produce the original. Perhaps, counsel for the Defendant is not aware of the proviso to Section 91 of the Evidence Act 2011 which provides that notice to produce will not be necessary where the adverse party who has the original knows that he will be required to produce it. From the testimony of the Claimant in court, she has laid foundation for the admissibility of the documents. In addition, Exhibit C5 is the termination letter of the Claimant. The Defendant did not deny the fact that that document is the Claimant’s termination letter. The document is not in dispute and it is also relevant to the case. I hold therefore that Exhibits C3 and C5 are admissible in evidence and they have been properly admitted in evidence. As for Exhibit C4, the argument of the Defendant’s counsel touches on the authenticity of the document. A doubt as to the authenticity of the document does not render it inadmissible. It may only affect the weight to be attached to the document if shown, with evidence that it did not emanate from the Defendant as canvassed by the Defendant’s counsel. I hold also that Exhibit C4 has been properly admitted in evidence. The Claimant’s counsel too has raised objection to the admissibility of the documents admitted as Exhibits D7a to D7h. The ground of objection, as argued in the Claimant’s final written address, is that the witness who tendered the documents was not the maker and the makers were not called as witnesses to be cross examined. The documents in question are statements written by some staff of the Defendant to the management of the Defendant. These statements were pleaded in paragraph 3 (e) of the statement of defence. The documents were tendered by DW2 who is the Matron of the Defendant. In her evidence, DW2 said during an investigation she opened into the activities of the Claimant, some staff of the Defendant who were eye witnesses to the Claimant’s conducts, wrote the said statements. From the evidence of DW2, the said statements were obtained by her in the course of her investigation. The statements having formed a record of her investigation, DW2 is competent to tender them in evidence. The individual staff who wrote the statements need not be called as witnesses before the statements can be admitted in evidence. The objection to the admissibility of Exhibits D7a to D7h is overruled. I will now consider the issue for determination. In relief 1, the Claimant sought a written apology from the Defendant. Her reason for seeking the apology is that the Defendant “negligently” terminated her employment “on wrongful allegation” through a letter dated 3rd April 2017. She also claims for general damages. Thus, to be entitled to the reliefs, the Claimant has the duty to prove that the Defendant was negligent in terminating her employment and that the allegations for which her employment was terminated were wrongful. The Defendant did not deny the fact that the Claimant’s employment was terminated. The contention of the Defendant is that her employment was terminated for acts of gross misconduct and it was done in accordance with the terms of the condition of service. These averments of the Defendant have effectively placed the burden of proof of her claims on the Claimant. The burden of proof of her case is squarely on the Claimant. Section 132 of the evidence Act 2011 (as amended) provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. In this suit, it is the duty of the Claimant to prove her claims to the satisfaction of the court to entitle her to the reliefs she sought. In her evidence, all that the Claimant said about the termination of her employment are that her employment was negligently terminated on wrongful and malicious allegation of selling hospital items to patients in a letter dated 3/4/2017. She also said she was never served any query throughout her employment and she was never invited to face any disciplinary committee of the Defendant before her employment was terminated. The Claimant did not give any evidence or the particulars of the negligent termination of her employment. She also did not supply any evidence to establish her allegation that the reason for termination of her employment was wrongful and malicious. The Claimant merely stated that her employment was negligently terminated on wrongful and malicious allegation without evidence to substantiate her assertions. The Claimant tendered the termination letter in evidence. It is Exhibit C5 dated 3rd April 2017 and addressed to the Claimant. It reads: LETTER OF NOTIFICATION I wish to bring to your notice that due to your non-challant attitude of always selling items to patients, in spite of several warnings issued to you by the Matron, your co-workers and care attendants. You persisted never to stop it. This attitude of yours is a serious offence in medical practice and against the policy of this hospital. It is on this note the management has decided to relieve you of your duty. This is with effect from 30th April 2017. Thank you. Yours sincerely Signed: Sr. Gladys Chukwu Matron Approved by: Signed: Medical Director/CEO It is clear from the termination letter that the Claimant’s employment was terminated on account of the allegations of selling items to patients and refusal to heed to warnings. In the statement of defence, the Defendant pleaded that that the Claimant’s employment was terminated for the reasons of stealing of patients’ items, reselling the items to other patients or the same patient, engaging in personal business by bringing her own items to sell inside the hospital premises during working hours and refusal to obey orders which acts amounted to gross misconduct. In the evidence of DW1 and DW2, they mentioned instances where the Claimant engaged in these acts. Exhibits D7a, D7b, D7c, D7d, D7e. D7f, D7g and D7h are reports from other staff of the Defendant notifying the Defendant of various conducts of the Claimant connected to the reasons for the eventual termination of her employment. From the pleading of the Defendant, the evidence of DW1 and DW2 and the reports in Exhibits D7a to D7h, I find that the Defendant had justifiable reasons to have terminated the Claimant’s employment for acts of misconduct. With the evidence before me, there is nothing to support the Claimant’s allegation that the reason for the termination of her employment was wrongful and malicious. The Claimant has alleged also that she was not given any query or invited to face disciplinary committee before her employment was terminated. Perhaps, the Claimant made this allegation with the intention that the termination of her employment be considered wrongful on the ground of lack of fair hearing. It must be emphasised that allegation of lack of fair hearing is not the material factor to found a claim of wrongful termination of employment in master and servant employment. In master and servant employment, as in this case, what determines the wrongfulness of a termination of the employment is if there is any breach of the terms or procedure in the contract of employment. It was on this ground the Supreme Court held in OSAKWE vs. NIGERIAN PAPER MILL (1998) 7 SCNJ 222 at 231 that the terms and conditions of the contract of employment are the foundation for a claim for wrongful termination of the employment and not on the basis of lack of fair hearing. Therefore, wrongfulness of termination cannot be founded on lack of fair hearing when a case had not been made out for any breach of the terms and conditions of the employment. The principle is basic in a master and servant employment that the employer has the right to terminate the employment or dismiss the employee at any time, whether with or without a reason. See TEXACO NIG. PLC vs. KEHINDE (2002) FWLR (Pt. 94) 143 at 160. The termination or dismissal can only be wrongful when contrary to the condition of service. Therefore, where wrongful termination of employment or dismissal from employment is alleged, the terms of the contract of service are the foundation in deciding whether the dismissal or termination was wrongful. In order words, an allegation of wrongfulness of termination of employment must be founded on the terms of the condition of service and the claimant is required to plead and prove the terms and condition of the employment, the circumstances under which the appointment can be terminated, the procedure for termination and the manner in which the termination of his appointment breached the said terms and conditions of the employment. See PETROLEUM TRAINING INSTITUTE vs. MATTHEW (2012) All FWLR (Pt. 623) 1949 at 1967; W.A.E.C vs. OSHIONEBO (2007) All FWLR (Pt. 370) 1501 at 1512. The Claimant did not bring her case within the condition of service. She did not allege that the termination of her employment offended any provision of the condition of service or that any terms of the condition of service was breached when her employment was terminated. Although the Claimant alleged that she was not given query or invited to face disciplinary committee, she did not tell the court if these are requirements under her condition of service. In the absence of any evidence of breach of the condition of service in the termination of her employment, the Claimant’s allegation that she was not served query or invited to face a disciplinary committee is inconsequential in the determination of her claims. The Defendant made efforts to defend itself of the claim of the Claimant when it averred that the claimant’s employment was terminated in accordance with the terms of the condition of service. It also went further to tender the conditions of service in evidence with the aim to prove that the Claimant’s employment was duly terminated. This is Exhibit D2. Let me mention it here that in a claim for wrongful termination of employment, it is not the duty of an employer, who is the Defendant to an action brought by an employee, to prove that the termination was not wrongful or that the contract of employment was not breached. The burden of proof is on the employee. In ZIIDEEH vs. RIVERS STATE CIVIL SERVICE COMMISSION (2007) All FWLR (Pt. 354) 243 at 258, the Supreme Court held thus: “It has been firmly established that when an employee complains that his employment has been wrongfully terminated, he has the onus (a) to place before the court the terms of the contract of employment and (b) to prove in what manner the said terms were breached by the employer. The law is that it is not the duty of the employer as a defendant in an action brought by the employee to prove any of these facts” See also PETROLEUM TRAINING INSTITUTE vs. MATTHEW (2012) All FWLR (Pt. 623) 1949 at 1967. The Claimant presented a very poor case before this court. In such a situation, the Defendant has no obligation at all to present the nature of defence it did. The Defendant went out of its way to defend this case. In the total result of this case, I find that the Claimant has failed to prove her allegation that her employment was negligently terminated on wrongful and malicious allegation. She has also not shown that that the termination of her employment was wrongful. Clearly, the Claimant has not proved her claims. Consequently, this suit is dismissed. No order as to cost. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge